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POLITICS IN ENGLAND AND THE UNITED STATES. 



A LECTURE 



Hon. J. I. CLARK HARE, 



BEFORE THE 



LAW ACADEMY OF PHILADELPHIA, 



MARCH 30TH, il 



PHILADELPHIA: 

J. M. POWER WALLACE, 132 SOU TH SIXTH STREET, 

OFFICE OF THE LEGAL INTELLIGENCER. 

1880. 



POLITICS IN ENGLAND AND THB UNITED STATES 



A LECTURE 



HON. J. I. CLARK HARE. 



BEFORE THE 



LAW ACADEMY OF PHILADELPHIA, 



MARCH 30TH, 1SS0. 



PHILADELPHIA: 

J. M. POWER WALLACE, 132 SOUTH SIXTH STREET, 

OFFICE OF THE LEGAL INTELLIGENCER. 

1880. 



e*t-j. 



LECTURE. 



Gentlemen of the Law Academy : 

I propose this evening to contrast some features of 
our Government with the means adopted in England 
for the attainment of like ends, and would ask your 
indulgence for my imperfect treatment of a subject 
that cannot easily be brought within the compass of a 
single lecture. 

It has often been said that the design of the Con- 
stitution of the United States was drawn from the 
English Constitution, and there is a general, or what 
may be termed family resemblance in the structure of 
the two governments, which is too close to be fortui- 
tous and shows that the remark is just. It is not less 
plain that this likeness is attended with great and 
essential differences, resulting not so much from choice 
as from the force of circumstances which rendered the 
institutions of the mother country inapplicable here. 
The comparison is the more difficult, because the 
English Constitution is not a constant quantity. Like 
the glacier, which though seemingly rixed and rigid, is 
yet plastic and suffers a continual change, it has varied 
in each century and sometimes with each successive 
generation, The system which prevailed under the 



6 CERTAIN POINTS OF DISTINCTION BETWEEN 

Tudors differed essentially from that which was estab- 
lished at the Revolution in 1688, and this has been 
subjected in our own times to almost as great a change. 
It is therefore important in reasoning from the English 
institutions to our own, to remember that the govern- 
ment under which our forefathers were born and from 
which they derived their ideas of constitutional freedom, 
was not identical with that which exists in England at 
the present day. The origin and development of the 
English Constitution are consequently a study which 
should be cultivated by every American, not only for 
its intrinsic value, but for the light which it sheds on 
the laws and institutions of the United States. 

The Government of the United States is essentially 
limited. If this may also be said of the English Gov- 
ernment, the extent and nature of the restraints are 
in many respects, different. The English Government 
was, in the form which it assumed in the reign of 
Edward I., and retained for centuries, limited by the 
mode in which authority was distributed among the 
several parts. The King had no power to make, to 
abrogate, or even to interpret the law.* Parliament 
could not legislate without the concurrence of the 
Crown. The executive power resided in the King, 
and subordinately in the officers and magistrates whom - 
he appointed. He was then, in fact, as he still is, 
theoretically, the commander-in-chief who led the 
feudal array and the militia of the shires for the 

* 12 Reports, 63, 74; Campbell's Lives of the Chief Justices, 

271, 275. 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 7 

defence of the realm, or to foreign conquest, and lie 
was also the chief magistrate to whom belonged the 
duty of seeing that the laws were enforced. On the 
qualities or defects, the vigor or imbecility of the 
monarch, depended the repose, the safety, the great- 
ness of the kingdom. If Henry V. or Queen Eliza- 
beth, could raise England to a foremost place among 
the nations, she might be no less depressed by a 
Henry VI. or Charles II. Still the King could not 
engage successfully in any great or protracted enter- 
prise, or provide effectually against invasion without 
the aid of Parliament. It was not merely that the 
right of levying taxes lay with the Lords and Com- 
mons. They were, as every King of England who 
persistently transgressed the limits set by the Consti- 
tution found to his cost, superior in military strength 
to any force that could be mustered by the Crown. 
It was, moreover, the singular merit of the English 
Constitution, as it existed in those earlier times, that 
while the Upper and Lower House were diverse, and 
counterpoised each other as well as the power of the 
Crown, they were yet, thanks to the high-spirited 
Knights who represented the shires and formed a con- 
necting link between the aristocracy and the people, 
rarely disunited when grievances were to be redressed, 
a profligate minister punished, or a feeble or unworthy 
monarch deposed. As no material change could be 
made in the laws without their concurrence, so it was 
not easy to resist any legislative reform on which they 
insisted; and they had in the right of the Commons to 
impeach, and of the Peers to convict and sentence, a 



8 CERTAIN POINTS OF DISTINCTION BETWEEN 

weapon of which all public men stood in awe, and 
which, though grossly abused, was on the whole favora- 
ble to liberty and good government. 

The laws were originally promulgated by the King, 
with the advice and consent of Parliament ;* but the 
legislative power gradually passed from his hands to 
those of the Lords and Commons. This was not 
merely an outgrowth of Teutonic and Scandinavian 
freedom, but resulted from the feudal organization 
which defined the obligations of the subject, and made 
his concurrence essential to a change. So the King's 
dues, as lord paramount, were fixed by custom, and 
could not rightfully be increased without the consent 
of those who held of him as tenants. The great 
charter accordingly declared, that except " for ran- 
soming our body, making our first born son a knight, 
and for once marrying our eldest daughter, no 
scutage or aid shall be imposed save by the Common 
Council of the realm:" Stubb's Illustrative Docu- 
ments, 290. And although this clause wa> omitted 
from the charter as reissued in the reign of Henry III., 
it was measurably re-enacted by Edwarc 1 I., and 
became an intregal though often violated part of the 
Constitution : 1 Green's History of the English 
People, 290; 2 Institutes, 529. Parliament thus 
acquired the power of taxation, which is the key to 
every other, and with it ultimately the entire control 
of the government. 

If the English Government was limited in its 

* 2 Parliamentary History, 365 ; 1 Green's History, 461. 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 9 

seveial parts, it was and still is absolute as a whole, 
or restrained only by public opinion, and the fear of 
provoking popular resistance. De Lolme relates that 
the English lawyers were wont to say that Parliament 
might do anything but renew the classic fable, by 
making a man a woman, or a woman a man. There 
is no change in the established order of things, no 
suppression of chartered or prescriptive right, that 
would not, if declared by Parliament, be legally 
binding on the English people : 2 Institutes, 525. 
Magna Charta, though in form a grant from the 
Crown, is in effect a statute, which with the statutes by 
which it was confirmed might be legislatively repealed, 
and this is equally true of the Petition of Right, and 
the other great landmarks of English liberty. Nor 
does the power of Parliament stop here. The judges 
might, if it is so willed, be dismissed to make way for 
others who would be more subservient to the passions 
of the hour as represented in the House of Commons. 
Representation might be denied to Wales or York- 
shire, a deed or will annulled, or land taken from the 
owner and given to a stranger. If a new faith were 
set up by Parliament, as it was in the time of Henry 
VIII., no one could allege that the act was void. 

In this brief outline of the English Constitution, as 
it stands in the pages of Blackstone, we see a govern- 
ment absolute as a whole, but composed of three 
several branches, each performing an appropriate 
part and constituting an effectual check on the others. 
A nearer view will nevertheless disclose a singular 
difference between the theory and practice. In 



io CERTAIN POINTS OF DISTINCTION BETWEEN 

the absence of legal or fixed boundaries there are 
yet certain ideal lines within which Parliament is in 
fact confined, and that cannot be transgressed 
without outraging public opinion, and producing a 
deep-seated discontent that would lead to revolution. 
It is in an unwritten code, in maxims handed down 
traditionally, in principles which have stood the test 
of experience, that we must seek the strength, the 
equipoise and the stability of the English Government. 
It is well for English freedom that it should be so, 
because the equal distribution of power existing at an 
earlier period has been singularly disturbed in modern 
times by the ascendancy of the House of Commons. 
In the XVI. century not only the foreign policy, but 
the internal administration of the kingdom, were 
exclusively under the dominion of the Crown. Parlia- 
ment might, and to a certain extent did, legislate in 
matters that did -not trench on the royal prerogative ; 
but when the question was in what way, and through 
whom the law should be carried into execution, 
sedition repressed, or the country protected against 
foreign aggression, the Tudors, and even the feeble 
James L, were intolerant of the voice of Parliament. 
I need not remind you how large a share the passions, 
the enmities, the private feelings, and convictions of 
Henry V. and Queen Elizabeth had on the course of 
the English Reformation, and the servants of those 
sovereigns were, as history shows, chosen with but 
little deference for the opinion of the House of 
Commons. When a minister fell it might be impor- 
tant to have friends and supporters in Parliament, in 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 1 1 

the meantime, the favor of his master was a sufficient 
safeguard. While such men as Wolsey, Cromwell, 
Burleigh, Walsingham or Bacon were placed near the 
helm, this was hardly a test of the power of the 
Crown, their abilities would have been distinguished 
under any form of government, but the omnipotence 
of the arrogant and ostentatious Buckingham under 
Charles I., and the fruitless efforts of successive 
Parliaments to bring him to justice, are a convincing 
proof that the Constitution did not yet afford a safe- 
guard against the influence of an unworthy favorite.* 
The English Government was then in fact what it 
is still sometimes called, a limited monarchy ; the king 
being the motive and guiding power, and Parliament 
a check or restraint that kept the royal prerogative in 
bounds, and prevented it from encroaching too far on 
individual right. If Charles had been an abler man, 
or less arbitrary as a King, the change from the old 
to the new order of things might have been indefi- 
nitely postponed, or have turned in favor of the 
prerogative. But when the resentments which the 
despotic rule of Strafford had inflamed culminated in 
a bill of attainder, the king was wanting to a servant 
who had been thorough to his master, and the House 
of Commons obtained in the conviction and death of 
the minister an ascendancy that has not since been 
successfully disputed by the Crown. The restoration 
was, it is true, followed by an interregnum during 
which either principle might seem to be on the eve of 

* 2 Parliamentary History, 404, 419. 



12 CERTAIN POINTS OF DISTINCTION BETWEEN 

gaining the upper hand ; but when the conflict 
between the King and Parliament was pushed to an 
issue by James II., the monarchy was again worsted 
in the struggle, and ceased to be a controlling 
element in the English Government. The critical 
state of the times and his own abilities grave William 
III. a predominance which no sovereign of England 
has since enjoyed, and the accession of the Hano- 
verian line inaugurated the aristocratic Commonwealth 
that has since, with an increasing measure of popular 
influence, borne sway in England. It is true that 
George III. had, during the greater part of his reign, 
no inconsiderable share of the authority which is 
commonly ascribed to monarchs, but, with this excep- 
tion, the power of the Crown has, during the last 
1 60 years, been exercised by an executive counsel 
chosen by the House of Commons. Though bearing 
the title of the ministers of the king, they are in fact 
neither selected by nor responsible to him. Like the 
hand on the dial, he merely indicates a result which 
the previous course of events has made inevitable. 
To use a phrase which was constantly in the mouths 
of the opposition under Louis Phillippe, in a constitu- 
tional government formed on the English model, the 
monarch presides or reigns, but does not govern. 
The place filled by the President in our system is 
according held in England, not by the King but by 
the Prime Minister, or rather by the cabinet taken 
collectively and acting as a whole. This constitutes a 
material difference in the working of the two systems, 
at a point where they might at first sight seem much 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 13 

the same. Theoretically, the executive power is 
vested in both countries in a chief magistrate whose 
tenure is independent of the legislature. Practically, 
the ministry are designated by the majority of the 
House of Commons, and may be displaced by a vote 
of want of confidence. If the American Constitution 
were what the English has virtually become, the 
conduct of public affairs would devolve not on a Presi- 
dent holding his office for a definite term, whom 
Congress does not select and cannot remove, but on 
the party leader who, for the time being, predomi- 
nated in Congress. To Thaddeus Stevens, and not to 
Mr. Johnson, would confessedly have belonged the 
question whether the South should be reconstructed 
through martial law, and we should have avoided the 
conflict of authority which more than once seemed to 
be on the eve of assuming such formidable propor- 
tions. Whether such a subordination of the Executive 
power to the Legislature would be beneficial here, I 
need not now inquire. It certainly was not the 
method of government contemplated by the framers 
of the Constitution. 

Some of the results of this difference between the 
English Government and our own are interesting and 
instructive ; I will advert to one of them. The King 
of England according to the letter of the Constitution 
is entitled to form alliances, to declare war and to 
bring it to a conclusion by a treaty of peace. In point 
of fact these powers are exercised by his ministers, 
who are in their turn, as I have already stated, desig- 
nated by the House of Commons. If that body dis- 



14 CERTAIN POINTS OF DISTINCTION BETWEEN 

approves of the foreign policy of the government, if it 
is of opinion that the honor of the country is sacrificed 
on the one hand to a desire for peace, or on the other, 
that hostilities are uselessly prolonged, it may compel 
the existing ministry to resign, and fill their places with 
men who are pledged to a different course. It is true 
that when a minister withdraws, the power of appoint- 
ing his successor is with the king, but as he must take 
the leader of the opposition, or some one whom the 
opposition will support, the choice is really made by 
Parliament." 

Such a method places the men who stand at the helm 
of state under the control of the assembly which rep- 
resents the nation, and compels them to shape their 
course according to its pleasure. If the will of the 
Prime Minister prevails, it is not because it is his will, 
but because he is able to convince a majority of his 
colleagues and of the House of Commons. It is the 
reverse of personal government, and has therefore 
been aptly designated as parliamentary. Our system, 
on the contrary, entrusts the executive department of 
the government to a Chief Magistrate, who, during 
his term of office and so far as his power extends, is 
virtually a king. Instead of a Prime Minister, desig- 
nated by the Legislature and dependent on their votes 
for his continuance in office, we have a President 
chosen for four years, and who can only be removed 
by an impeachment and conviction for treason, corrup- 
tion, or other high crime or misdemeanor. He is as 
much the representative of the entire people of the 
United States as any member of Congress can be of 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 15 

his district, and should therefore exercise the discre- 
tionary powers confided to him by the Constitution, in 
the way that he may deem best calculated to promote 
the welfare of the country, which may not be the way 
deemed best by Congress. Take for instance, the 
case of a war which Congress thinks unnecessary or 
unjust, and wishes to close on terms that the enemy 
are willing to accept. Still it is the right of the Presi- 
dent and not of Congress, to determine whether the 
terms are advantageous, and if he refuses to make 
peace the war must go on. Under such circumstances 
it would clearly be the duty of Parliament to withhold 
the supplies necessary for carrying on the war, because 
such a vote on their part, would produce a change of 
ministry followed by the return of peace ; but as 
a corresponding action on the part of Congress will 
not lead to a cessation of hostilities, it is as clearly 
their duty to provide the means for prosecuting the 
contest with effect and bringing- it to an honorable 
termination. 

Accordingly, when President Polk precipitated hos- 
tilities with Mexico by marching an army into the 
disputed territory, Congress had no choice but to 
declare the existence of the war which he 'had pro- 
voked, and which they had no power to terminate. 
So the question, whether the South should be relieved 
from military occupation and regain the political free- 
dom which the Constitution guarantees, was recently 
determined by the Executive and not by the Legisla- 
ture, which could neither command the withdrawal of 
the troops, nor direct that they should remain, Other 



1 6 CERTAIN POINTS OF DISTINCTION BETWEEN 

cases may be imagined where the policy of the Presi- 
dent may diverge from that preferred by Congress, 
and where it may notwithstanding be incumbent on 
Congress to attend upon and further the course of the 
Executive. This was more than once the case during 
the administration of Washington, whose sage policy 
kept the immature strength of the Republic from 
being involved in the war of giants that was then 
raging in Europe. 

That such divergences of the Executive and Legis- 
lature are full of danger, is shown by the unhappy 
differences which occurred during the Presidential term 
of Mr. Johnson, and they are all the more likely to 
arise, because the party which prevails in Congress is 
not unfrequently in direct and violent opposition to 
that by which the Chief Magistrate was elevated to 
office. Instead of the mutual confidence that must 
exist under the English system between the depart- 
ment of the government which enacts and that which 
executes the law, there may be jealousies and heart 
burnings, followed by a resort to undue means to 
bend the Executive to the will of the Legislature, or 
place the Legislature under the feet of the Executive. 
In such a struggle the popular Assembly will generally, 
in the long run, prevail ; and some of those who hear 
me may live to see the House of Representatives 
approach more nearly than it does at present to the 
position of the House of Commons. Such a result 
would be contrary to the theory of the Constitution, 
but may be forced on us by circumstances. 

A Chief Magistrate who wields the whole military, 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 17 

and no inconsiderable share of the civil power of the 
State, who can incline the scale to war and forbid the 
return of peace, whose veto will stay the course of 
legislation, and who is the source of the enormous 
patronage which is the main lever in the politics of the 
United States, exercises functions which are more truly 
regal than those of an English Monarch. Once chosen 
he is irremovable for four years by anything short of 
an impeachment by the House and a condemnation by 
a two-thirds vote of the Senate, and may mould the 
policy of the government, as did Jackson, with no 
great regard for the opinion of Congress. In a criti- 
cal conjuncture his influence for good or evil may be 
enormous, and can be estimated by supposing that 
secession had occurred at the commencement of Mr. 
Buchanan's term of office, and that he had insisted on 
negotiating instead of meeting force with force. 
Elect such a magistrate for life, or give him a perma- 
nent hold on office, and he may be termed Mr. Pres- 
ident, but will be every inch a king. 

It is not surprising that an election of so much 
moment and on which so many selfish as well as 
public interests depend, should evoke burning pas- 
sions on either side, and give occasion for the fraud, 
violence and intrigue which were unhappily so rife in 
the year which, as the hundreth Anniversary of our 
Independence, should have been free from such a 
taint ; and it has become a question with reflecting 
minds, whether the Republic can bear the stress to 
which it is periodically subjected, or hope for another 
hundred years of life, unless some change is made in 



i8 CERTAIN POINTS OF DISTINCTION BETWEEN 

the Executive department that will render the choice 
of a President less momentous than it is at present. 
The only way of accomplishing such a reform is to 
substitute Parliamentary Government for personal, by 
rendering- the Cabinet responsible to Congress, and 
removable as in England on a vote of want of confi- 
dence. Such is the rule-in France, where the ministers 
are nominated by the President, but depend on the 
votes of the Lower House and must resign if that is 
adverse. It is significant that the framers of the 
organic laws of the French Republic should, after a 
century's experience of the working of the English 
method and our own, have preferred the former as 
bringing the Executive within the control of the Legis- 
lature ; and their wisdom would seem to be vindicated 
by the ease with which M. Grevy was chosen to suc- 
ceed Marshal McMahcn. 

The steps by which Parliament has encroached on 
the Executive are not the only change that has 
occurred in the English Constitution since the reign 
of Queen Elizabeth. Technically and legally speak- 
ing, the enactment of a statute requires the united 
voice of King, Lords and Commons ; unless they all 
concur, the bill falls. There was a period in English 
history when this was more than a legal fiction — when 
the Crown not only might, but did modify, amend or 
reject measures that had received the assent of both 
Houses of Parliament ;* but when the power of the 

* See Green's History of the English People, 461. " In former 
times the course of petitioning the King was this : The Lords and 
Speaker prepared their petition to the King. This then was called 



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THE ENGLISH AND AMERICAN CONSTITUTIONS. 19 

Crown came to be vested in a ministry designated by 
and representing a majority of the Lords and Com- 
mons, such a veto ceased to be practicable, because 
the Prime Minister was responsible for the acts of the 
King, and could not consistently sanction the defeat of 
a measure which he had advocated in his place in 
Parliament. This check on the popular will has 
accordingly ceased to be a part of the English Consti- 
tution. If a law passes both Houses of Parliament it 
must receive the assent of a King, who can only speak 
through ministers who are the delegates and leaders 
of the majority that enacts the law. 

There has been another change within the walls of 
Parliament. As late as the reign of Queen Anne, and 
for some time afterwards, the House of Lords was not 
only an integral, but a co-ordinate and equal branch 
of the government. To have their support was as 
important as to have a majority in the House of Com- 
mons, and no measure which the great body of the 
Peerage disapproved could well be passed over their 
heads by popular agitation. But as the constituency 
which the Lower House represented grew in intelli- 
gence and information — as wealth flowed into the great 

the bill of the Commons, which being received by the King, part 
he rejected and put out, other part he certified, and. as it came from 
him, it was drawn into a law ; but this course in the 2nd Henry V. 
was found prejudicial to the subject, and since in such cases they 
have petitioned by petition of right, as we now do who come. to 
declare what we demand of the King, for if we should tell him what 
we should demand, we should not proceed in a parliamentary 
course." Speech of Mr. Glanville at the Conference between the 
Houses of Parliament on the clause annexed by the Lords to the 
Petition of Right : 2 Parliamentary History, 365. 



io CERTAIN POINTS OF DISTINCTION BETWEEN 

commercial cities and manufacturing towns, and the 
influence of the untitled gentry balanced or out- 
weighed that of the Peers — the Commons rose to be 
the great council of the nation, and the power of the 
House of Lords diminished in a like proportion. This 
change, which had been going on for a length of time, 
culminated in the passage of the Reform Bill. The 
rejection of that measure by the Upper House, in 
October, 1831, led to a violent agitation throughout the 
kingdom. Another bill of the same nature was passed 
by the Commons in the following year, and although the 
Lords manifested their repugnance by a vote taken on 
the 7th of May, and that would have been decisive had 
there been no pressure from without, their opposition 
ceased in obedience to the counsels of the Duke of 
Wellington, and a month afterwards the bill became a 
law. This result placed the weakness of the House of 
Lords in a light that could not be misunderstood ; 
they have since been virtually a revisory committee, 
rather than a co-ordinate branch of the Legislature ; 
and it may safely be predicted that they will never 
again come to a grave political issue with the assembly 
which, from its origin and nature, has public opinion 
on its side, and represents the will of the English nation. 
The battle of the aristocracy will be fought hereafter, 
as it has been during the last thirty years in the House 
of Commons, and if lost there, will not be renewed in 
the assembly which was once the citadel of privilege. 
The Lords are, nevertheless, a useful check on rash 
and inconsiderate legislation, and when the question 
does not touch the popular heart, may amend bills that 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 21 

have been passed by the Commons, or reject them 
absolutely. 

In estimating the relative strength of the two 
branches of the English Legislature, it must not be 
forgotten that the powers incident to the Prerogative 
are virtually wielded by the Cabinet which is the 
creature of the Commons and responsible to them,* 
and it is not surprising that this additional weight 
should render the scale of the popular assembly pre- 
ponderant, when it might otherwise be balanced 
by the Peers. It is in this sense that we must under- 
stand various utterances of the Duke of Wellington, 
and among others that the bill for the repeal of the 
corn laws " having been already agreed to by the 
other branches of the legislature the function of the 
House of Lords was at an end."j- For as the Queen 
can only speak through a minister whom the Commons 
approve and will support, his voice is practically hers, 
even when he is endeavoring to carry a measure to 
which she may be personally adverse. Such a use of 
the Executive power for the furtherance of popular 
ends, or in aid of the dominant party in the Commons, 
is the more likely to occur, because since the Preroga- 
tive came under the control of a ministry whom 
Parliament selects and may dismiss, it has not been an 
object of distrust, and acts are viewed with compla- 
cency that would have provoked resentment had they 
proceeded from the royal will. J If the Lords had not 

* May's Constitutional History, vol. 1, 457. 
f See D'Israeli's Life of Lord George Bentinck, 229. Sheldon 
Amos, Fifty Years of the English Constitution, 349. 
I May's Constitutional History, vol. 2, 136. 



22 CERTAIN POINTS OF DISTINCTION BETWEEN 

withdrawn their opposition to the reform bill, it would 
undoubtedly have been carried over their heads by the 
creation of new peerages at the instance of Earl 
Gray's Government, despite the extreme reluctance 
of William IV.* So the sale of commissions in the 
army was abolished in 1871, during Mr. Gladstone's 
administration, by a royal warrant, after the bill which 
the Commons had passed for that end had been re- 
jected by the Peers. In like manner, while the Canons 
are formally convened to choose a Bishop, and yet 
must vote for the candidate who is designated by the 
Crown, or incur the pains and penalties of a prcemu- 
nire, the nomination is really made by the Cabinet, and 
depends in the last resort on the popular will as mani- 
fested in the elections for the House of Commons. - ) - 
Among the many anomalies of the English Govern- 
ment none is more characteristic. Although not 
answering to Cavour's ideal of a free church in a free 
state, it is yet eminently practical and just, because one 
who as a spiritual peer is to take part in the task of 
legislation, should obviously derive his authority from 
a national and not from an ecclesiastical source. 

If we now inquire what measure of personal au- 
thority remains to the Sovereign, the answer is that he 
can do nothing save through ministers whom he ap- 
points but cannot choose, and who are responsible for 
his acts before the country and to Parliament. So 
close is the watch, so little is needed to excite distrust, 
that a telegram to Queen Victoria from the Indian 

* May's Constitutional History, vol. 1, 260. 

f Green's History of the English People, vol. 2, ch. 4, p. 160. 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 23 

Viceroy, Lord Lytton, announcing the advance of the 
British troops on Afghanistan, and a sympathetic note 
from her Majesty to Lord Chelmsford then commanding 
the forces in Zululand, became the theme of injurious 
comments in the press, and gave occasion for a critical 
debate in the House of Commons, in the course of 
which Sir Stafford Northcote admitted in replying for 
the government, that if Lord Lytton's object had been 
to obtain the Queen's support for a policy that was not 
approved by the Cabinet, it would have been a serious 
offence against the Constitution of the country and the 
privilege of Parliament.* Strange as it may seem, 
the Queen cannot name her Ladies in Waiting or 
Mistress of the Robes without consulting the Prime 
Minister, and must dismiss them if an incoming ad- 
ministration insists on such a change. f The husband 
of a Queen regnant is not less jealously regarded 
than herself and must not take part or manifest an 
interest in the politics of his adopted country; and 
the presence of Prince Albert in the House of 
Commons during Sir Robert Peel's speech for the 
repeal of the corn laws, drew forth a grave remon- 
strance from Lord George Bentinck as the leader of 
the Opposition, and was according to Mr. D'Israeli, 
"disquieting to moderate men on both sides. "J Such 
minnticz may seem trivial, but serve to indicate how 
little save the mere show of authority is left to an 

* Fifty years of Constitution in England by Amos Sheldon, 

P- 333- 

f May, vol. 1, 131 ; Sheldon Amos, 231. 
J Life of Lord George Bentinck, 106, 



24 CERTAIN POINTS OF DISTINCTION BETWEEN 

English Monarch. The high sounding term pre- 
rogative, is now simply a technical and convenient form 
of expression for the powers that can legally be exer- 
cised by the Executive Department of the English 
Government without the sanction of an act of Parlia- 
ment, and which though nominally belonging to the 
Queen, are controlled by the Cabinet and ultimately 
by the House of Commons. 

It. must not however be inferred that an English 
Sovereign is necessarily a cipher. If as Sir Stafford 
Northcote authoritatively declared from his place in 
Parliament in April, 1879, it is the Queen's right 
to be consulted, to encourage, and to warn, she is neces- 
sarily entitled to full information of all that occurs in 
the Cabinet or Parliament, and may exercise an influ- 
ence that will to some extent compensate for the power 
that the Crown has lost.* The letters of the Queen 
and Prince Albert to the premier Lord Aberdeen, 
during the Crimean War, urging vigorous measures 
and deprecating the moderation of his language in 
the House of Lords, may be cited in proof of this 
remark.f 

From this brief sketch we may see that the House 
of Commons has by slow degrees dispossessed the 
Crown and Peerage, and is now the propelling and 
guiding force, the sails and helm of the English Gov- 
ernment. Raised from a subordinate position to be 
the hinge on which all else depends, it controls the 

* See Sir S. Northcote's Speech in Fifty years of English Consti- 
tution by Sheldon Amos, 333. 

f See Fifty Years of the English Constitution, 218. 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 25 

House of Lords, selects the ministers, and wields 
through them the power of the throne. The Executive 
has in this way become the mouth-piece of the Legis- 
lature, and if the independence of the Judiciary is secure, 
the safeguard is in public sentiment and not in con- 
stitutional provisions. 

The American Constitution may be thought to con- 
trast favorably in these respects with that of England. 
The Senate is not, like the House of Lords, the expo- 
nent of a privileged class, weak in numbers and 
inferior in wealth and influence to the landed gentry 
and great manufacturers who are represented in the 
House of Commons ; nor is it like the Senate of the 
several States a duplication of the Lower House, dis- 
tinguished merely by a little more stability of tenure. 
It represents the States themselves, those great polit- 
ical corporations, which, properly regarded, are such 
important stays in the frame- work of our government. 
It is consequently less within the reach of the pop- 
ular gales that blow so fiercely in a merely democratic 
assembly, and may keep the even tenor of its way 
when the waves of faction are running high in the 
House of Representatives. 

The Senate is not the only restraint on the popular 

will, as declared in the House of Representatives. 

The 7th section of the ist Article of the Constitution, 

requires that " every bill, order, resolution or vote of 

Congress shall be presented to the President, and if he 

returns it with his objections, it shall not become a law, 

without the concurrence of two- thirds of both Houses." 

The power which had grown obsolete in England was 

4 



26 CERTAIN POINTS OF DISTINCTION BETWEEN 

thus made effectual here ; and this clause is one of 
many proofs that the framers of our Constitution drew 
their inspiration from the political history of the 
mother country, and intended that the traditional checks 
and balance wheels of the monarchy should not be 
wanting in the Republic. Whether they were or were 
not aware that the administration of the English Gov- 
ernment was gradually passing into the hands of a 
delegation from Parliament, they certainly did not 
intend to establish such a system in the United States, 
and leant in the opposite direction by making the con- 
sent of the President, save in the rare and exceptional 
case of a two-thirds majority in both Houses, essential 
to new legislation, or to the repeal, alteration, or re 
enactment of the laws already made. He thus became 
a third branch of the Legislature, whose approval was 
ordinarily requsite to the success of any measure pro- 
posed by the other two. It was accordingly by a res- 
olute veto that Jackson frustrated the re-charter of the 
Bank of the United States, and subverted the financial 
policy that had, with a brief interval, prevailed from 
the outset of the government, and that Grant prevented 
the expansion of the irredeemable currency that had 
been bequeathed by the civil war; and we have recently 
seen the persistent attempts of Congress to extort 
Executive assent, by making it the price of the sup- 
plies needed for the military and civil services, foiled 
by the steadfastness of Mr. Hayes. The power may 
not always have been wisely exercised, but its use is 
as consistent with the method of our government as it 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 27 

would be foreign to the spirit of the English Constitu- 
tion in the form which it has finally assumed. 

It may be doubted, in view of this and some other 
clauses of the Constitution, whether the members of 
the convention which framed our government knew 
how rapidly the House of Commons was engrossing 
all the powers of the State. There were few even 
among the students of constitutional history who 
perceived what the studied phrases of Black stone 
tended to conceal — that the dream of Vane and 
Sidney had taken shape and substance in a Common- 
wealth recalling the grandeur and far-reaching power 
of Rome. Men still viewed the royal prerogative 
with apprehension, and the aggression on the freedom 
of the Colonies had been popularly regarded as 
proceeding from the Crown. There was the more 
reason for such a belief, because George III. had, on 
mounting the throne, displayed a vigor and decision 
that might, if joined to a sound and penetrating 
judgment and the abilities that command popular 
respect and admiration, have changed the course of 
events on both sides of the Atlantic. The Revolution 
of 1688 did not so much prove the firmness of the 
English people, or their steadfastness in maintaining 
their freedom, as the incapacity of James II. Among 
the minor causes that have led to great events may 
be enumerated the marriage of Mary Queen of Scots 
to Darnley. It was from him that the monarchs of 
the House of Stuart inherited the waywardness, the 
weakness, the instability, that placed them in such 
marked contrast to their predecessors, and at once 



28 CERTAIN POINTS OF DISTINCTION BETWEEN 

provoked and encouraged the resistance which, in 
establishing the liberty of England, contributed so 
largely to our own. There are periods in the history 
of races when everything may turn on the greatness 
of an individual, as there are others when the current 
of events is too strong to be controlled. If James II. 
had possessed the force of character and military 
talent of Gustavus Adolphus, or even of his gallant 
descendant in the second generation, Charles Edward, 
the cause of popular liberty would have been seriously 
imperilled. After the defeat at the Boyne and the 
surrender of Limerick — the last city that held out for 
the Stuarts — one of their most devoted adherents 
declared his readiness to renew the conflict if the 
other side would change kings. It might, as late as 
the succeeding century have been possible for a wise 
and able prince, possessing the popular qualities of 
Caesar or Henry IV., to put the liberties of the nation 
beneath the Crown. Such, at least, is the opinion of 
a great critic and historian, Mr. Grote. But this is 
one of those chapters which Destiny leaves unwritten 
for want of a fitting instrument. 

In the selfish acquiescence of Queen Anne and the 
honest mediocrity, broken by occasional lapses into 
vice, of the Hanoverian line, there was nothing that 
could imperil Parliamentary government, and much to 
foster and advance its growth. During the earlier 
part of the reign of George III. there was indeed a 
reflux that promised to restore no small portion of 
the authority which the Crown had lost. 

The spirit of loyalty had languished tor seventy 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 29 

years in England for want of its appropriate aliment. 
Though James II. had deeply wounded the high 
church divines and the landed gentry, they still 
regarded his deposition and the exclusion of his 
descendants as a sacrilegious spoliation. William III. 
was in their eyes a military usurper, Queen Anne the 
unnatural occupant of a brother's throne, and George 
I. and II. alien intruders who kept the rightful heir 
from his inheritance. The Royalists, by a strange 
sport of fortune, were thus made antagonistic to the 
actual wearers of the crown, and caught up or echoed 
the cry of patriotism until they came to regard it as 
their own.* A country party was thus formed which, 
from love for monarchy, opposed the Court, and favored 
a more liberal rule than that of the great Whig families, 
which had originally espoused the cause of the Hano- 
verian line from a sincere attachment to Constitutional 
freedom. The Stuarts, who had never been thor- 
oughly Anglicized, became still more estranged by 
their long residence on the Continent, while the 

* "Your right Jacobite, sir, disguises his true sentiment. He 
roars out for revolutionary principles ; he pretends to be a great 
friend to liberty, and a great admirer of our ancient Constitution, 
and, under this pretence, there are numbers who every day 
endeavor to sow discontent among the people. These men know 
that discontent and disaffection are, like wit and madness, 
separated by thin partitions, and they therefore hope that if they 
can once render the people thoroughly discontented, it will be easy 
for them to render them disaffected. By the accession of these 
new allies, as I may justly call them, the real but concealed 
Jacobites have succeeded even beyond their own expectation." 
So crushing was this retort that the Patriots prudently refrained 
from dividing. — Sir Robert Wa/poie's speech in the House of 
Commons as given in Malum ' s History, vol. 2, pp. 263, 264. 



30 CERTAIN POINTS OF DISTINCTION BETWEEN 

Guelphs took root in their adopted country, and at 
length produced a scion that might fairly be consid- 
ered as of English growth. The death of Frederick 
Prince of Wales, in March, 1 75 1 , left his eldest son, 
heir apparent, with every prospect of a long and 
successful reign. Brave, prejudiced, honest, in many 
respects a typical Englishman, his ambition was to 
play the part of a patriot king as it had been 
portrayed by Bolingbroke, and the nation was well 
disposed to second such an attempt. The brilliant 
raid of the Pretender, in 1745, had been fatal to the 
Jacobite cause, not so much through the defeat at 
Culloden, as by showing that it might be strong in 
the Highlands, in Ireland, or in the support of France, 
but that Englishmen would not hazard life and fortune 
in its behalf. Men who, like Dr. Johnson, had been 
nurtured in the belief that the right of kings to 
govern was from God, might still theoretically adhere 
to the exiled line, but were nevertheless, with few 
exceptions, in common with the great body of the 
nation, ready to accept the youthful prince as their 
king.* Fourth in descent, and third in succession 
from George I., it could not be denied that he had a 
prescriptive if not legitimate title to his grandfather's 
throne. Accordingly when he assumed the crown as 
George 111. the tide of loyalty reverted to its natural 
channel, and might with skillful pilotage have raised 
the sovereign above the control of Parliament. For 
many years there was no party in England capable of 

* See Redgauntlet, vol. 2, ch. 7, 14; Croker's Bosswell, ch. 16, 
p. 147, Mahon's History, vol. 4, ch. ,7, pp. 208, 209, 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 31 

holding the King in check. The Tories, in obedience 
to their instincts, became the devoted adherents of 
of the Court, while the Whigs, who had, as the 
defenders of the Hanoverian succession as established 
by Parliament, regarded the first sovereigns of that 
House as clients rather than as masters, were now 
kept at a distance, and broke into factions in the 
selfish pursuit of place, or more generous, went into 
opposition on behalf of the Liberal principles that 
were endangered by the increasing influence of the 
Crown. 

No circumstances could well have been more favor- 
able for the restoration of personal government, but 
the attempt was neccessarily unsuccessful in the hands 
of one whose qualities would have been honored in a 
private station, but were too narrow for a throne.* 
The young King turned from his constitutional 
advisers to his Groom of the Stole, Lord Bute, who 
had gained an ascendency over the Royal mind which 
was wholly disproportioned to his abilities, and the 
favorite was appointed one of the Secretaries of State 
with an influence which made him virtually Prime 
Minister, and led to the withdrawal of the elder Pitt 
from the conduct of a war which owed its success to 
his genius. The motives for the change were merely 
personal, and it has been said with truth, that for 
many years and while the King retained his reason, 

* " A better farmer ne'er brushed dew from lawn, 
A worse King never left a realm undone." 

Byron' ' s Vision of Judgment. — Stanza 8. 
The last line is an exaggeration. 



/./ 



32 CERTAIN POINTS OF DISTINCTION BETWEEN 

no statesman whom he disliked could obtain a seat in 
the Cabinet, no policy be adopted which he disap- 
proved. It the narrow and exclusive measures that 
lost the Colonies to England were initiated in Parlia- 
ment, they received a constant and avowed support 
from the Throne ; and it was through the firmness of 
George III., in opposition to the great majority of the 
House of Commons, that the younger Pitt was able to 
make the appeal to the country which resulted in 
driving the ministry formed by the coalition between 
North and Fox from power, and making him Prime 
Minister of England. In these instances, as well as 
later, on the question of Catholic emancipation, the 
King threw the weight of his character and rank into 
the scale with an inflexibility of purpose that had a 
marked influence on the course ol events ; but his 
intervention, though unmistakably sincere and honest, 
was seldom fortunate either for the nation or himself, 
and when on the recurrence of his malady, in 1810, 
the Prince of Wales became Regent, kingly govern- 
ment, in the full sense of the term, ceased to exist in 
England. 

It is not merely in the independence of the Executive 
that the Government of the United States may be 
contrasted with that of England. The separate exist- 
ence of the judicial power is, at least in theory, more 
distinctly marked and attended with stronger guaran- 
ties. The English judges are, it is true, appointed for 
life, and have for nearly two hundred years fulfilled 
their duty with an impartiality that cannot easily be 
surpassed ; but they may still be dismissed at any 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 33 

moment by Parliament. It is the assurance that Par- 
liament will not abuse its power that secures their 
independence. If the House of Commons were a 
merely popular assembly, it might not exercise this 
self-restraint, or the judges be so secure in their tenure 
of office. Moreover, Parliament may as I have 
already intimated, blend the Judicial and Legislative 
function, and by an attainder, or bill of pains and pen- 
alties, deprive an obnoxious individual of his property 
or life. It is not necessary that the offence should be 
political, or even that a legal offence should be alleged, 
the statute may be ex post facto, or sentence the alleged 
criminal without assigning a cause. I do not mean to 
imply that such a law is likely to be passed in England ; 
there is, perhaps, no country where men are less in 
danger from arbitrary power, but the safeguard is in 
the temper of the House of Commons, which may in 
the course of time undergo a change, 

From what has been said, it is obvious that if the 
Executive Department of the English Government is 
distinct and separate, it is notwithstanding controlled 
and administered by agents whom the Commons select 
and may dismiss at pleasure ; and next that although 
the separation between the Legislature and Judiciary is 
more distinctly marked, it may be disregarded or effaced 
by Parliament. What then, it may be asked, since 
Parliament is thus omnipotent, is the English Consti- 
tuion ? What distinguishes it from the various gov- 
ernments in which power is confessedly absolute ? The 
answer is that if the only limit to the authority of 

Parliament is that set by the reason and judgment of 

5 



/ 



34 CERTAIN POINTS OF DISTINCTION BETWEEN 

the Lords and Commons, they still proceed according 
to rules and precedents which, having been handed 
down for ages, possess a restraining influence which 
written constitutions sometimes want. Parliament 
might deal with a political enemy as it dealt with 
Strafford ; might arrogate to itself the trial of any cause 
that it did not choose to leave to the ordinary tribu- 
nals ; might, if it saw fit, supersede the courts of justice 
by a commission acting under martial law. These 
things are possible, but centuries have passed since 
any Englishman has been deprived of life or goods, 
except by the judgment of his peers or in the due 
course of law prescribed by Magna Charter ; nor does 
it enter into the mind of any Englishman to apprehend 
danger through the direct or indirect use of judicial 
or executive power by Parliament. On the contrary, 
there is no assembly where a respect for vested rights 
and personal liberty is more deeply rooted, or that is 
less inclined to go beyond just bounds to the injury of 
either, When on full investigation and debate, it 
appears that a measure cannot be adopted consistently 
with the principles of the Constitution, the argument 
is as conclusive as if the measure were one that Par- 
liament could not adopt. 

An inquiry may here be made which deserves an 
answer. Since Parliament virtually nominates the 
Ministry and may compel them to resign, what security 
is there against an arbitrary and capricious exercise of 
its power which may prevent the execution ot a settled 
policy, and render the Executive the slave of the 
Legislature ? The answer is, that the Cabinet ma)- 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 35 

advise the Crown to dissolve Parliament, and bring 
its members before their constituents to answer for 
their conduct. The creature thus has a check on the 
creator, the servant on the master, and may, if a dif- 
ference arises call in the Nation as an arbiter. 

It is no doubt conceivable that an artful and design- 
ing monarch might unite with a Parliamentary cabal to 
remove an obnoxious minister without permitting an 
appeal to the people ; but such a course would increase 
the influence of the statesman whom it was designed 
to crush, and insure his ultimate return to power. 

It results from the above sketch of the practical 
working of the English Constitution, that a principal 
and perhaps the most important function of the House 
of Commons is elective, to designate the persons who 
are to fill the executive department of the government, 
and exercise the powers which the Constitution of the 
United States confers on the President. This is not 
effected by a formal vote. Certain men come to the 
front, and are recognized as having the ability or 
influence to act as leaders, and when a crisis occurs 
they must be taken because they are the only persons 
who can control the House of Commons. A result 
has thus been fortuitously attained, which the framers 
of our government sought to produce by means 
which have been conspicuously unsuccessful. They 
knew that a numerous and popular constituency may 
have a common purpose, but cannot save in rare and 
exceptional instances, form a deliberate judgment as 
to the means by which its will can be carried into 
effect, or the persons who are best fitted to execute 



36 CERTAIN POINTS OF DISTINCTION BETWEEN 

it. As the people must legislate through representa- 
tives, and interpret the law through judges, so they 
should not act personally and directly in choosing a 
Chief Magistrate. If such a power is conferred, it will 
slip from the popular grasp and be used by dema- 
gogues for selfish and ambitious purposes. The Con- 
vention sought to overcome the difficulty by an 
ingenious expedient. The people of the United States 
could not reasonably be expected to fix on a man 
having the gravity, dignity and matured experience 
requisite for a President of the United States. Such 
qualities raise their possessor above the common level 
and tend to segregate him from his fellows. More : 
over, the inhabitants of the various sections would 
have their local preferences and could not readily 
confer together, or unite upon the candidate best 
fitted for such an exalted post. It seems, however, 
to have been taken for granted that if the masses were 
incompetent for such a task, the several States would 
have no difficulty in selecting men in whose wisdom 
they could confide, and who would exercise a sincere 
and unbiassed judgment. The soundest statesmen, 
the best read lawyers, the most experienced men of 
business, would be chosen as Electors, and would, 
after mature deliberation in their respective colleges, 
fix on some individual whom public opinion could not 
but approve as worthy of the first place in the Repub- 
lic. This elaborate contrivance is, as you are well 
aware, frustrated by pledging the Electors to vote for 
the candidate of the party to which they belong, and 
which uses them as its instruments. So entirely is 



THE ENGLISH AND AMERICAN CONSTITUTIONS 37 

this the paramount, though unwritten law, that if they 
were to exercise their judgment in accordance with 
the letter and spirit of the Constitution, the act would 
be universally regarded as an outrage, and might lead 
to civil war. Usage has thus in less than a century 
abrogated an organic statute, which was intended to 
be an integral part of the frame-work of the govern- 
ment, and insusceptible of change except through a 
constitutional amendment. 

The assemblies to which the choice of a President 
properly belongs, having thus virtually ceased to 
exercise their powers, these devolve on the politicians 
on either side, who meet in convention and designate 
the persons among whom the American people must 
select a Chief Magistrate. The limitation is as real 
as if it were written in the Constitution, because the 
citizen who gives his suffrage to any other candidate 
virtually throws away his vote, and might as well 
absent himself from the polls. This practical repeal 
of the Constitutional provision would be of less 
moment if the nominating conventions represented the 
community as a whole, or were chosen in a way pre- 
scribed and regulated by law, but they are self-consti- 
tuted bodies whom the State does not recognize, and 
for which consequently it cannot provide. There are 
two elections, one to select the candidates, the other 
to determine which of them shall prevail; and while 
elaborate precautions are taken to protect the latter 
against force and fraud, the former has no such safe- 
guards. There are no means of excluding- a fraudu- 
lent or illegitimate vote, nor any appeal to an unbiassed 



38 CERTAIN POINTS OF DISTINCTION BETWEEN 

tribunal, if it is admitted. No one can exercise the 
right of suffrage at the primary elections without 
being registered as a party man, and those only have 
a controlling influence who are partisans. The suc- 
cessful merchant, the substantial tradesman, and the 
industrious artisan, stand aloof, and their place is filled 
by adventurers, who make a trade of politics, with a 
view not so much to the honors of public life as to its 
gains. Hence it happens that the American people 
are governed for many purposes, and especially as it 
regards the choice of the men who fill the halls of legis- 
lation, and administer the executive departments of 
the government, by an oligarchy whose merit does not 
compensate for their numerical insignificance. I have 
asked in mixed assemblages whether any one present 
had taken part in the choice of the delegates to a 
Presidential convention without receiving an affirma- 
tive reply, and I am convinced that such persons are 
so few in number as to be out of all proportion to the 
community which they affect to represent. They have, 
moreover, in general, no will of their own, and are 
simply the tools of a still smaller body of tacticians 
who touch the springs and control the movements of 
the whole machine. There are, I believe, some four 
or five hundred persons in either party, who could, if 
they agreed, determine who should be its candidate, 
and thus virtually compel the citizens to vote for him, 
or suffer the election to go by default in favor of some 
one who is politically more offensive and personally 
not less obnoxious. 

It is not difficult to understand why the Electoral 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 39 

Colleges have sunk so much below the level of the 
duty intrusted to them by the Constitution. They are 
ephemeral bodies, called into existence for the per- 
formance of a single function, and ceasing as soon as 
it is fulfilled, and they do not individually or collectively 
possess the weight and dignity to resist pressure from 
without, and exercise an independent judgment in such 
a choice as that of a President of the United States. 

Far different is the position of Parliament. It is an 
assembly venerable from its antiquity, and as the re- 
pository and safeguard of English liberty, which pro- 
ceeds according to known rules, precedents and 
traditions, and is the source from which we, in common 
with all civilized nations, have derived our conception 
of liberal institutions and constitutional law. Con- 
sisting for the greater part of men distinguished for 
birth, wealth, or attainments, and who do not depend 
for their social position on their seats as legislators ; it 
does not meet for a day and then dissolve, but has con- 
tinuing and important duties to fulfil — to regulate the 
finances ; to amend the s civil and criminal jurispru- 
dence ; to review the foreign and domestic policy of 
the government, and to change it, if need be, by a vote 
of want of confidence. The contests to which such 
questions give rise call forth the best abilities on either 
side ; the great parties which divide the House learn 
who is sagacious in counsel and eloquent in debate, 
and are not likely to select chiefs who will lead them 
to defeat. The English Premier must, therefore, not 
only be one who can think clearly and express his 
ideas in appropriate language, but he must also have 



40 CERTAIN POINTS OF DISTINCTION BETWEEN 

the commanding ability to silence opposition, and take 
the lead in a struggle where force of character is not 
less essential than eloquence. An author who is not 
more remarkable for the eccentricity of his style, than 
for his entire disregard of justice, has spoken con- 
temptuously of the rule of able speakers, and 
expressed his preference for the heroism which makes 
a successful appeal to force. If Mr. Carlisle's view is 
correct, Mahomet, Frederick the Great, and Napoleon, 
deserve better of mankind, and have a higher claim to 
reverence than Demosthenes, Chatham, the younger 
Pitt, or Daniel Webster. A government of rhetori- 
cians is certainly not desirable, but such men do not 
easily attain a first place in an assembly which meets 
for the transaction of business, and is as eminently 
practical as the English Parliament, and true eloquence 
is generally associated with the qualities which should 
meet in one who seeks to rule his fellows. 

There is another and still more important difference. 
An American President, once chosen, is secure of his 
office for four years, and whatever may be his blunders 
or inefficiency, can only be removed by an impeach- 
ment ; but Parliament not only selects the Ministry, 
but can change it whenever it thinks proper. The 
Cabinet is constantly on trial — the motion which fails 
to-day may be renewed to-morrow ; and if the force of 
circumstances raises an incompetent man to power, 
he will be removed as soon as his unfitness becomes 
manifest. He stands in the forefront of the debate, 
exposed to the shafts of argument, invective and ridi- 
cule, and his party will not readily witness a failure 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 41 

which would involve their own. The President is put 
to no such proof, The only communication between 
him and Congress is through a formal written inquiry, 
and no less formal reply ; his messages need not come 
from his own pen ; and as the Cardinals have been 
said to look for weak lungs and impaired digestion in 
making choice of a Pope, so the politicians who are 
intriguing for the Presidency, may think that their 
interests will be promoted by the nomination of a 
second-rate man, whose talents will not command a 
second term. 

In the study of institutions we must consider their 
actual working, as well as the theory on which they 
are based, and the neglect of this precaution may lead 
to conclusions which are essentially false. Where a 
government has endured for any length of time, some 
branch of a more vigorous growth generally supplants 
or overshadows the rest. Thus we have seen that, 
although the outward forms of the English Constitu- 
tion are unchanged, the House of Commons has 
become the controlling power of the State. So the 
Electoral Colleges of the United States have dwindled 
into an unmeaning show, while the caucus, in its 
various forms of the primary election and the nomi- 
nating convention, has acquired an all-pervading 
influence which the founders of the Republic certainly 
did not anticipate. It has accordingly been said with 
much truth that all governnients must perish unless 
they are periodically brought back to their first 
principles. In applying this maxim it is nevertheless 

requisite to consider whether the deviation which we 

6 



4-2 CERTAIN POINTS OF DISTINCTION BETWEEN 

are attempting to correct is a natural growth, or one 
of those excrescences which deform, and may 
ultimately destroy the plant. He would be an erring 
reformer who would put the Crown in England where 
it stood in the reign of Elizabeth or James I. It were 
well if as much could be said for the oligarchic 
conventions that have engrossed so large a share 
of power in the United States, and would be attended 
with still greater evil if they were not held in check 
by the small body of independent voters who persist 
in thinking for themselves, and when the ticket is 
exceptionally bad, stand aside, or vote for the candi- 
date of the opposite party. 

The election of the Chief Magistrate is not the only 
point in which the working of our institutions has 
falsified the expectations of the men by whom they 
were founded. Unhappily, the malady is not confined 
to a single branch, but threatens the entire system. 
The political decadence of our government is a 
constant theme of complaint in private assemblies and 
tne public press, and is the more remarkable, because 
the social result is, in many respects, fortunate. The 
mass of the people of the United States are humane 
and intelligent, and not less honest than an average 
German, Englishman or Frenchman, and there are few 
countries where education is so generally diffused. 
If property is rapidly accumulated in the great 
commercial centres, it is as rapidly distributed under 
the operation of equal laws of inheritance, and a 
large proportion of the population enjoys that moder- 
ate competence which places its possessor beyond the 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 43 

temptations alike of poverty and riches, and is favor- 
able to the development of the qualities that are essen- 
tial to self government. It is accordingly generally 
conceded that the American people displayed more 
than ordinary sagacity, firmness and moderation in 
dealing with Secession, not only while the conflict 
lasted, but at its close. Unfortunately, while the 
nation has risen in some respects to a higher level, 
its public men have declined in a more than equal 
ratio, and will not with some creditable exceptions, 
bear comparison with the framers of the Constitution, 
or the leaders in counsel and debate, during the 
opening years of this century. Many causes have 
been assigned for a phenomenon which is so disheart- 
ening to republicans, and among them that the 
American is too much bent on pecuniary success to 
care for the Commonwealth, and suffers questions of the 
highest moment to go by default. This accusation 
seems to me thoroughly unfounded. In no part of the 
world do men respond with more alacrity to their coun- 
try's voice, whether it summons them to the field or to 
the performance of a civil duty. No slackness was found 
on either side, during the late civil war, and there are 
few who absent themselves from the frequent elections 
which are held under the auspices of the Federal and 
State governments. If further proof is needed, we 
may point to the hospitals, prisons, public trusts, and 
the numerous other institutions of private charity or 
general usefulness, which are conducted by men who 
withdraw from business, and labor gratuitously for the 
common good. It is not, therefore, from a lack of 



44 CERTAIN POINTS OF DISTINCTION BETWEEN 

public spirit, that the primary elections on which all 
else depends, are shunned by the best and most 
patriotic citizens, and we must look elsewhere for the 
explanation of a fact which all good men deplore. 

One cause unquestionably is, as I have elsewhere 
stated, that these assemblages are, in fact caucuses 
which the law does not recognize and cannot regulate, 
and that if a voter is overawed or excluded from the 
polls, or a certificate fraudulently given to a delegate 
who did not receive a majority of the suffrages, the 
only mode of redress is an appeal to an irresponsible 
committee, which may sympathize with the persons 
who contrived the wrong. Moreover, the party rules 
are so worded as to exclude every one who did not 
vote the entire ticket at the last election, and will not 
promise to be faithful at the next ; and as there are 
many persons who cannot conscientiously give a 
pledge which would limit their freedom of choice, and 
may compel them to support an unworthy candidate, 
so the effect is to disfranchise a large number of the 
men whose attendance it would be most desirable to 



* The following extract from Harper's Weekly of March 6th, 
1880, shows how the political machine is worked in our cities, and 
that the effect is to disfranchise the great body of the citizens. 

" There is one docile political personage who is generally over- 
looked and contemned, but who is a very important part of every 
election. We mean the individual voter. He is not a holder of 
office, nor a seeker of office; he is merely an intelligent private 
citizen whose business prevents him from giving his exclusive atten- 
tion to politics, but who wishes to do what he can to secure an 
honest, economical and patriotic administration of affairs. He 
reads in his newspaper that the only way in which he can " make 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 45 

If these were the only difficulties, the practical good 
sense of the American people would perhaps supply a 

himself felt " is to begin at the beginning, and attend the primary 
meeting. But the city newspaper which gives this advice, is 
either delightfully innocent or a mocker. The voter is told that 
if he neglects the primary meeting, and fails to vote at it, he has 
no right to complain of the action of those who do, and that he 
has only himself to blame if nominations are made and policies 
adopted which he does not approve. We should like to ask the 
intelligent and comfortable city voter who is reading these lines 
how often he attends a primary meeting, or knows when one is 
held, and whether the reason that he does not go is not the feeling 
that it would be of no use. But whether he thinks of it at all or 
not, we can inform him that his suspicion is correct, and that it 
would be of no use. When his newspaper urges him to go to the 
primary meeting, or acquiesce in its action without grumbling, it 
exhorts him to do what it ought to know that he cannot do. He 
is disfranchised, and cannot vote at the primary even if he should 
demand the privilege. He has no voice in the initiation of political 
action, and all he can do is to ratify or to refuse to ratify the "job 
put up ' ' by others. 

This is an interesting fact for the important personage of whom 
we have spoken, the individual voter, who, although he does not 
make politics his business, has the power to give success or defeat 
to political parties. Until he recognizes this fact he is a mere pawn 
and counter in the hands of professional politicians, who play their 
game by the baldest bribery of patronage or open corruption. The 
election in the State of New York is generally decided by the result 
in the city, and that is arranged upon both sides by politicians who 
treat the respectable voting reader of these lines as the overseers of 
plantations in the ante-bellum days treated their slaves. " Go to 
the primaries, or take the consequences," shout the newspapers. 
But let the voter see whether he can go to the primaries. The 
system is essentially the same in both parties. The Republicans 
borrowed it from Tammany Hall. It divides the city into district 
associations, and authorizes every voter to become a member of the 
association in the district of his residence, and of that association 
only. The conditions of admission are proposition by responsible 
members, a favorable report from a committee, and a pledge to 
sustain the " regular " action of the party. This scheme, of course, 
excludes from membership, and consequently from the right of 



46 CERTAIN POINTS OF DISTINCTION BETWEEN 

remedy, but there is a malign influence resulting from 
the vicious system under which every public servant 

voting at the primaries, every man who is objectionable to the 
rulers of the association, because nothing is easier than to "hang 
up" an obnoxious name in the committee, while self-respecting 
men are very slow to pledge themselves in advance to support 
"regular" action, without regard to its honesty or expediency. 
The result of the system upon the Republican side is this, that of 
more than 58,000 voters in the city, no more than 6,000 or 8,000, at 
the most, are members of the association. More than 50,000 of the 
58,000 Republican voters who are exhorted to go to the primaries 
could not vote if they went. The exhortation is a mere mockery 
in such a community as a great city, however wise it may be in a 
small rural neighborhood. The facts have been long familiar to 
those who are interested, but a letter from Mr. George Bliss, 
published last November, gave a clear insight into the subject to all 
who had no knowledge. 

Three or four years ago the " Easy Chair " in Harper ' s Monthly 
described the attempt of a good citizen, one of the individual voters 
who could not devote all his time to politics to take part in a 
primary meeting. It was in another city, indeed, and he took part, 
but very much as a leaf takes part in the flowing of a river. Mr. F. 
W. Whitridge, in the current number of the International Review, 
relates his experience and that of a friend in New York, and his 
story is well worth the attention of those who exhort attendance 
upon primaries as the panacea of our political ills. Mr. Whitridge 
and his friend went to the primary as per exhortation. There was 
a man in the room at a table, and a few other men were lounging 
about. Others came in, and after saying something to the man at 
the table, went out again. The two individual voters waited 
patiently for the meeting to be organized, in order to " make them- 
selves felt." But at the end of an hour they were informed that 
the primary was in progress ; that the gentlemen who had come in 
had voted ; that a ticket which was shown to them was going to be 
elected, although votes, of course, could be cast for any one else ; 
and finally, that only members of the association could vote. This 
is the way in which the immense New York city delegation to a 
State Convention, which can usually decide the action of a conven- 
tion, is selected, and this is the exact measure of the value of the 
exhortation to individual voters to go to the primaries or to hold 
their tongues. It shows, — and it is but one part of the evidence^- 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 47 

is removable at pleasure, and will inevitably be 
dismissed unless he not only does the party bidding 
but upholds the patron to whom he owes his place. 
There are, it has been authentically stated, more than 
two hundred thousand offices, State, municipal and 
Federal, held by a slavish tenure which compels the 
incumbent to obey his political task-makers, at the 
risk of being deprived of the means through which he 
gains his bread. If he is not required to make bricks 
without straw, he must at least furnish the straw from 
his own bed which may be a scanty one, or, in plain 
English, devote no inconsiderable portion of a salary, 
which presumably is not too large to procure faithful 

how far the machinery of politics has eaten out the principle of 
popular institutions, and how absolute is the despotism of professional 
politicians, that is, of men who make a business of packing caucuses 
and conventions in order to force upon the voter who cannot give 
all his time to such business the alternative of supporting whatever 
they propose, or of practically helping the other party. But the 
individual voter, if he chooses to assert himself, is still the important 
personage. It is true that he cannot give all his time to politics, and 
that he cannot cope with the professional politician at the primary, 
but he can vote against him at the polls, and teach him in the 
only way in which he can be taught, that lie cannot count upon 
a great party as upon a flock of sheep. There is a deep and rapidly- 
growing disgust and indignation with this inexorable despotism. 
This feeling gave a tremendous note of warning at the last election 
in New York. It is felt by those who do not choose to advertise 
their opposition, but who know how to " make themselves felt " at 
the polls, if they cannot do so at the primaries. It is idle and 
worse to represent such an abuse of organization as in itself a 
necessary organization. It is made possible only by the patronage 
of office. While that patronage is open to such abuse, the despotism 
can be checked only by the quiet independence of the individual 
voter. But it can be completely overthrown only by the awakening 
of public opinion to the destruction of the vast bribery fund of 
patronage." 



48 CERTAIN POINTS OF DISTINCTION BETWEEN 

and efficient service, to a fund which is employed in 
maintaining the party organization, and not unfre- 
quently for factious and personal ends. It should also 
be remembered that for every man who is actually in 
place, there are three or four aspirants, one at least in 
his own party, and two or more on the other side, 
who all expect to succeed him when removed, and are 
ready instruments in the hands of a politician who will 
consent to promote their views. 

The natural result of such a system is a swarm of 
political adventurers, who, though serving under 
different chiefs, are always prepared to unite against 
any citizen whose chief desire is to promote the public 
good, and whom they consquently regard as an intru- 
der on a domain which they desire to control for their 
own purposes. The affiliation is sometimes open and 
avowed, sometimes concealed under a decent veil, and 
we accordingly read of clubs serving under the names 
of " Jones," " Brown," or "Robinson," of the " Ameri- 
cus" Club, and of a mysterious band whose pilgrimage 
assuredly is not to the Holy Land;* or, turning to New 
York, of Tammany, Mozart Hall, and the other noto- 
rious brotherhoods which have been used as instru- 
ments by such master-spirits as Sweeney, Tweed, and 
Kelly. It is not surprising that such a force should in 
the long run prove irresistible, and engross the entire 
field of politics. Reform associations may be consti- 
tuted, and partial successes be obtained here and there, 

* The " Mysterious Pilgrims" a political club, generally believed 
to have been established by the politicians of both parties for the 
attainment of private ends through public means. 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 49 

but an army of regulars will always prevail against a 
militia however high spirited and patriotic, and at the 
close of each succeeding year party government is 
found to have become more entirely a machine. The 
evil has grown to such a height that the meeting of 
our Legislative Assemblies is viewed with apprehension, 
and their adjournment hailed with delight, and the 
Constitutional Convention which recently sat in this 
city, after lessening the evil by taking every power 
from the Legislature that was not indispensable, 
applied a palliative by providing that the session should 
be biennial ; and a similiar proposition has been made 
with regard to Congress. 

That such restrictions should be needed, shows how 
much we have sunk below our proper level. Where 
no grave disorder afflicts the State, the Legislature 
may be trusted to give the law to the other depart- 
ments of the government, and provide for each con- 
tingency as it arises. Such is the case in England, 
where Parliament exercises an authority which would 
,be arbitrary but for a self-imposed restraint. If Con- 
gress or the State Legislatures were thus absolute, no 
vested right Would be secure, and every man who had 
anything to lose would have to be constantly on the 
watch against the undue influence in which, as it is 
generally believed, so many of our laws originate. 
No one who is conversant with the political history of 
the last fifty years will think this picture overcharged, 
and I might appeal for its reality to the conventions 
which have been successively engaged in devising 

7 



50 CERTAIN POINTS OF DISTINCTION BETWEEN 

elaborate precautions against ignorant and corrupt 
legislation. 

I do not know that any one remedy will suffice to 
heal a disorder which is so profound and of such long 
standing, but the nearest approach to a radical cure 
would be found in making the tenure of office during 
good behavior. Human nature is everywhere much 
the same ; the differences arise from the influences to 
which men are subjected ; and a people who are 
systematically led into temptation will scarcely remain 
in the straight and narrow path. As our government 
is now constituted, office is a powerful magnet which 
draws all the baser passions into political life, and 
repels high toned and patriotic feeling. The " ins" 
are swayed by their fears, the " outs" by their hopes, 
and both are apt tools in the hands of ambition and 
intrigue. It is not susprising that men who do not 
disdain to use such levers distance their more scrupu- 
lous competitors, nor even that a veteran politician 
who has long been versed in such arts, should monopo- 
lize a State and transmit it as a family possession. 
A change in the tenure of office would correct this 
evil, or reduce it to proportions that would be no 
longer dangerous. The office-holder is naturally the 
most cautious of mankind, and if he knows that he is 
secure in a close adherence to his public duties, will 
not go beyond them. If the much talked of reform in 
the civil service, which is impracticable without the aid 
of legislation, had really been accomplished, it would 
have been superfluous to forbid the officers of the 
Federal Government to mix in politics. It was because 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 51 

the men who had been appointed by a Republican 
Administration, knew that nothing would save them 
if the Democrats came into power, that the President's 
command was inefficacious, and might indeed be 
reasonably objected to as putting the manipulators of 
one party in bonds, and leaving those on the other 
side free to employ their usual tactics. 

It is, I think, an inevitable inference from the consid- 
erations above stated that if the government were 
conducted on the principles which prevail in private 
life, and the public servants retained so long as they 
performed their duty, the office-holder would withdraw 
altogether from politics, or cease to be a controlling 
element. Nor is this all ; not only would the actual 
occupants be free to vote as conscience dictated, but 
the Commonwealth would be delivered from the swarm 
of aspirants whose hopes are centered on the places 
that are already filled. It has been said with too much 
truth that for every man who enjoys the sweets of 
office there are half a dozen striving for his seat, and 
who do the bidding of some political patron in the hope 
that his influence will facilitate the accomplishment of 
their desire. Such expectations, like lottery tickets, 
are apt to prove fallacious, but do not on that account 
have a less powerful hold on the imagination of man- 
kind. 

Removal from office in order to fill the vacancy with 
personal or political adherents is a practice unknown 
to the better days of the Republic, and of comparatively 
recent growth, and was originally vindicated on the 
ground that when a party succeeds to power there 



5^ CERTAIN POINTS OF DISTINCTION BETWEEN 

should be a change of men as well as of measures, and 
that the incoming administration cannot safely rely on 
the officers who were appointed by their predecessors. 
This pretence has long since been laid aside, and it is 
now generally understood that one who aids in secur- 
ing the nomination of a President, Governor or 
Senator, may demand a place although none is vacant 
and his desire cannot be gratified without turning out 
some public servant who has been equally faithful to 
his party, but does not happen to have a friend at 
court. If the doctrine that to the victors belong the 
spoils was mischievous as originally promulgated, it is 
far more demoralizing now, when, as Mr. Marcy 
bitterly observed, every political condottierre thinks 
himself entitled to despoil the camp of his own party 
if there are no other means of rewarding his immediate 
partisans. Such a system has an inevitable and 
increasing tendency to faction and cabal, and is not 
less prejudicial to party success and discipline than to 
the welfare of the community at large. The results 
are at once ludicrous and sad. The first qualification 
for the appointment of a letter carrier or custom house 
officer is that he shall be able to carry his precinct. 
If he can, he is sure of a recommendation from a 
member of Congress or State Senator who wants his 
services as a delegate. If he cannot, the postmaster 
or collector who ventures to appoint him will be sub- 
jected to a pressure which few men can resist, or- per- 
haps summarily ejected. The chief of a bureau is not 
unfrequently placed in a painful dilemma by a struggle 
between two rival politicians for the Presidency or 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 53 

Governorship, in which each insists that his partisans 
shall be appointed. If he favors A., and B. has the 
ear of the existing administration, he will be dismissed 
forthwith ; if he does not, and A. is elected, his official 
life will be brief. Such dramas are frequently enacted 
in the great political centres, and more than one has 
taken place in this city during the last few years. 

If the axe were laid to the root of the evil by 
rendering the tenure of office permanent, politics 
would cease to be a trade because they would no 
longer afford a hope of profit. There would be few 
vacancies save through death or resignation, and when 
one occured, promotion would take place as it does in 
the army and navy, in the order of seniority or for 
meritorious services. The avenues to public life 
would no longer be closed to men who are averse to 
the arts of faction and intrigue, and the way lie open 
for the noblest career that can engage or elevate the 
mind. 

There are some who affect to treat such a reform as 
a visionary project, a counsel of perfection which 
might be well enough in Utopia, but is impracticable 
as political society is now constituted. It is a suffi- 
cient answer to this objection that the principle for 
which I am contending has been established in England 
by the force of public opinion, and with the results 
which the best men anticipate from it here. An Eng- 
lish minister who should dismiss a public servant on 
party or personal grounds would loose his self-respect 
and the confidence of his fellow-countrymen. When 
Lord Beaconsfield was recently charged with having 



54 CERTAIN POINTS OF DISTINCTION BETWEEN 

made an appointment which, though entirely respecta- 
ble, was alleged to have been prompted by the wish 
to serve a political friend, no voice was raised in his 
behalf in the House of Commons, and he could hardly 
have withstood the attack had he not shown in a 
masterly speech in the House of Lords that he had 
called on the different bureaus for a list of the most 
meritorious candidates, and chosen him who best de- 
served the place. A change of administration may 
necessitate the resignation of some thirty or forty 
persons who are members of the Cabinet, or the 
political chiefs of the various departments, but the 
other offices are filled precisely as they were before. 

The marked improvement that has occurred during 
this century in the tone of English politics has not 
been attended with a corresponding amelioration here, 
and our public men have sunk as much below the 
level of Washington and Hamilton as theirs have 
risen above that of Sir Robert Walpole. The patron- 
age incident to official position is now justly regarded 
in England as a trust, and it is felt that one who uses 
it for his private ends is as little worthy of confidence 
as a cashier who speculates with the money of the bank. 
These truths were axiomatic to the men who devised 
the American Constitution, and when they are again 
recognized and acted on, we may hope that politics 
will cease to be a scene of intrigue, and become the 
chosen pursuit of the wise and good. 

It has been no part of my purpose in delivering 
this address to conceal the ills that afflict the Republic, 
nor my apprehensions that they will prove mortal if 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 55 

unchecked. If truth is due in any quarter, it is to our 
country, and when treating of the dangers that menace 
her existence. But I do not mean to intimate that the 
case is hopeless, and have laid the naked facts before 
you as an incentive to exertion, and not as a reason 
for despair. There is much in the experience of the 
past to encourage hope. Corruption is not so rife in 
our legislative assemblies as it was in Parliament when 
Sir Robert Walpole could declare from his own 
knowledge and of no inconsiderable portion of his 
opponents, "all these men have their price;" or when 
George III. contributed ^,"6000 from his private purse 
for the purchase of votes ;* and the abuse of patron- 
age was not less familiar to Newcastle, to Bute, or to 
North, than it is to an American politician of the 
present day. The entire change that has been wrought 
in these respects in England during the last ninety 
years is an assurance that a like purification may be 
accomplished here. The spirit of reform is at work 
on both sides of the Atlantic, It was owing to the 
fearless disclosures of the New York Times, and the 
zeal of a few private citizens that the villainous crew 
who were plundering the city of New York were ex- 
posed and brought to justice. Recent events in this 
Commonwealth point in the same direction ; and it is 
not a slight matter that the convention which renomi- 
nated General Grant in 1872 thought it for their 
interest to declare : " Any system of the civil service 
under which the subordinate positions of the govern- 

* See May's Constitutional History of England, vol. 1, 317. - 



56 CERTAIN POINTS OF DISTINCTION BETWEEN 

ment are considered rewards for mere party zeal is 
fatally demoralizing, and we therefore favor a reform 
of the system by laws which shall abolish the evils of 
patronage, and make honesty, efficiency and fidelity 
the essential qualifications for public positions, without 
practically creating a life tenure of office." These 
professions may have been as insincere as they 
have proved fallacious, but if hypocrisy is a tribute 
paid by vice, it at least indicates the existence of 
the virtue which it seeks to hoodwink. 

Gentlemen of the Law Academy, it has been justly 
said, that the future belongs to youth ; and it rests with 
you, and with those who, like yourselves, are animated 
by the generous impulses and lofty purpose that mark 
the opening years of life, to determine whether the 
great experiment of self-government shall succeed. 
The question is a momentous one, because civilization 
and liberty are both at stake. De Tocqueville long 
since said, that all the European races would follow the 
same law of development as ourselves, and end in the 
democracy which had been established here ; and the 
subsequent course of events tends to show the truth of 
his remark. When such a change has once occurred, 
it is as impossible for a nation to revert to monarchy, 
or to aristocracy, as it would be for an individual to 
renew his youth, and the choice lies between a well 
ordered popular government and the Caesarism which 
may afford a temporary refuge from anarchy, but never 
yet staid the downward course of any people. The 
conditions are nowhere so favorable to the solution of 
such a problem as in the United States ; and if we fail, 



THE ENGLISH AND AMERICAN CONSTITUTIONS. 57 

what country can hope for success.* The issue does 
not therefore concern ourselves alone, but mankind, 
and the event must neccessarily depend on such an 
education of the people as will not only inspire them 
with a love of freedom, but with a knowledge of the 
dangers with which it is threatened, and the means by 
which they can be averted or overcome. Once convince 
the masses that party as now organized is adverse to 
their interests and the general good, and that civil 
service reform is the much needed corrective, and we 
may rely on their common sense and patriotism for the 
rest. No man who has the requisite opportunities and 
knowledge should regard himself as exempt from this 
duty, but it belongs primarily to the profession which, 
trom its acquaintance with the principles of constitu- 
tional law, is best fitted for such a task. The influence 
of the Bar, as De Tocqueville finely pointed out, is 
greater in this country than in any other, and has been 
largely exerted for good.-j- The Constitutional Con- 
vention, which recently did so much good work in this 
city, and with such entire earnestness and sincerity of 
purpose, was composed principally of lawyers, and is 
a convincing proof of what might be expected from the 
Bar if the people were free to choose their represen- 
tatives. It is therefore to the legal profession, as rep- 
resented by the gentlemen whom . I have the honor to 
address, and, above all, to the young men who in a few 
years will take the lead, that I would appeal on behalf of 

* De Tocqueville La Democratic en Amerique, vol. 2, ch. 9, p. 190* 
f La Democratic en Amerique, vol. 2, chap. 8, p. 174. 



g8 CERTAIN POINTS OF DISTINCTION. 

our country, to regard her as their client, and devote 
some portion of their laborious days and nights to the 
cause of reform. I believe that cause to be necessary 
and just, and that with such advocacy it will prevail. 



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